The criminalization of environmental protest in Trump’s America

An elderly woman is escorted to a transport van after being arrested by law enforcement as part of the final sweep of the Dakota Access pipeline protesters. (CREDIT: Mike McCleary/The Bismarck Tribune via AP, Pool)

In October of 2016, a group of five climate activists across four states cut through padlocks and chains to enter flow stations for the Kinder Morgan pipeline, which runs from Canada to the United States. In an orchestrated action, the activists shut off the valves for the pipeline, effectively bringing the transport of millions of barrels of tar sands oil to a halt in an attempt to shine a light on the global climate crisis.

Legal retribution against the group, dubbed “Valve Turners,” was swift and severe. The activists were charged with a litany of crimes, including, most notably, criminal sabotage and criminal mischief — both felonies that can carry sentences of 10 years in prison. Two of those activists have already been found guilty of felony charges, while two others are still awaiting trial. The fifth activist’s case initially ended in a mistrial, with a jury finding him guilty of just one charge, second-degree burglary, during the second trial.

If one of the biggest climate stories of 2016 was the growing public resistance to fossil fuel infrastructure — which culminated in the protests at Standing Rock, where thousands joined with indigenous communities to fight against the controversial Dakota Access Pipeline — then the story of 2017 might be the response, largely from fossil fuel companies and conservative politicians, to clamp down on civil disobedience.

“This crackdown is happening because activists have been successful, and because industry realizes that protest is a threat,” Kelsey Skaggs, executive director of the Climate Defense Project, told ThinkProgress. “We’ve seen it begin, and now we’ve seen it worsen.”

Fossil fuel companies have been working with law enforcement for years to crack down on environmental protests; in 2012, TransCanada briefed local law enforcement along the proposed Keystone XL pipeline route on prosecuting anti-pipeline activists under anti-terrorism laws. But a Trump administration — complete with a Department of Justice presided over by Attorney General Jeff Sessions — combined with more than 30 state legislatures under Republican control signal a new kind of danger for environmental activists: one where intimidation and criminal prosecution could be endorsed not just by fossil fuel companies but by government and law enforcement at almost every level.

“The conditions now are perfect for an increased crackdown, because the Trump administration is so friendly in terms of pro-policing, pro-business attitudes, and because a lot of state legislatures are controlled by Republicans,” Skagg said.

The Valve Turners are hardly the only environmental group to be hit with criminal charges for protesting this year. In August, Energy Transfer Partners — the company behind the Dakota Access Pipeline — filed a lawsuit against a handful of environmental groups that participated in the protests at Standing Rock, accusing the groups of engaging in “acts of terrorism” as well as “destruction of private and federal lands.” In the lawsuit, the company claims that actions by Greenpeace and other organizations cost $300 million in damages; it could seek up to three times that amount in court.

The lawsuit is not the first time that Energy Transfer Partners has pursued a narrative of terrorism in response to the protests at Standing Rock. Leaked documents obtained by the Intercept in May revealed that TigerSwan, the private security firm hired to monitor the protests, purposefully used military-style counter-terrorism measures, and coordinated with law enforcement in at least five states, to oppose the protests at Standing Rock.

“I think that it’s obvious that it’s not just a militarization of the response, it’s also the use of counter-intel kinds of practice to try to smear folks,” Leonard Higgins, one of the Valve Turners who was found guilty of felony charges, said of the larger trend towards criminalizing environmental protest. He also spoke of a “smear campaign” against protesters and indigenous tribes to make those groups appear violent to the surrounding communities.

Various reports from Standing Rock, however, paint a different picture of protesters and their interactions with security and police forces. In September of 2016, Democracy Now!recorded instances of security personnel employed by Energy Transfer Partners using dogs against peaceful protesters, and police officers reportedly used water cannons, rubber bullets, and tear gas on crowds.

The Energy Transfer Partners case follows a similar suit brought against Greenpeace by the Canadian pulp and paper company Resolute Forest Products, which Resolute brought against the environmental group in response to a multi-year campaign Greenpeace ran in opposition to the company’s logging operations. That lawsuit was dismissed by a federal judge in October, though Resolute has signaled their intention to refile the complaint.

“This suit is part of a rising tendency on the part of government and industry to demonize activists and to criminalize free speech activity,” Ted Hamilton, co-founder of the Climate Defense Project, told ThinkProgress in August when Energy Transfer Partners first filed their lawsuit. “Fossil fuel companies know that they’re losing public support for their poisonous activities — and so label their opponents ‘terrorists’ and seek gag orders in court.”

But it’s not just private security firms and fossil fuel companies that have sought to paint environmental activism as a terrorist activity this year. In October, 84 members of Congress sent a letter to Attorney General Jeff Sessions asking whether the Justice Department could treat activists who sabotage energy infrastructure as domestic terrorists.

The letter specifically referenced the Valve Turners, asking whether the Department of Justice has any plans to prosecute the activists federally. But the letter also asked whether the agency planned to prosecute “any individuals who knowingly damaged” oil and gas infrastructure — an expansive definition that could open up any number of anti-fossil fuel activism techniques, like chaining oneself to a pipeline, to federal prosecution. The letter sparked concern from activists, who worried that peaceful environmental protesters could be treated like the J20 defendants, who were part of a mass arrest on Inauguration Day. The Justice Department is currently pursuing serious felony charges against hundreds of protesters rather than taking a more selective route to prosecution.

“I think about J20 a lot, and it’s just so obviously repressive and over the top,” Higgins said. “I feel really uneasy with where we are at now, and the fact that so many people are just going about business as usual.”

At the local level, several state legislative bodies have attempted to pass legislation that would criminalize tactics employed by peaceful protesters. In North Dakota, following the protests at Standing Rock, the state legislature considered a bill that would have protected drivers if they “inadvertently” hit, injured, or killed a pedestrian who was obstructing traffic (protesters at Standing Rock, at times, used their bodies to block the roads and construction sites).

Bills looking to criminalize protest specific to fossil fuel infrastructure could also become more prevalent in the coming year. The American Legislative Exchange Council (ALEC) — a group that receives funding from petrochemical billionaires Charles and David Koch and works to provide state legislatures with model legislation — recently voted on a model bill that would both codify “criminal penalties for a person convicted of willfully trespassing or entering property containing a critical infrastructure facility without permission by the owner of the property” and hold “a person liable for any damages to personal or real property while trespassing.”

The bill was inspired by two laws passed this year in Oklahoma; the state legislator who introduced the bills cited Standing Rock, as well as protests that have “disrupted” fossil fuel infrastructure, as the impetus for pushing the measures.

“Legally, many of these proposed bills are clearly unconstitutional and many of them have failed to be passed into law,” Skaggs said. “But their existence, even as proposals, can certainly create fear and chill First Amendment activity.”

It’s against the backdrop of increased intimidation and criminalization of environmental protest that 2018’s biggest environmental battles will play out. The Keystone XL pipeline, which has been brought back to life by the Trump administration after more than half a decade of controversy, has been approved by a Nebraska regulatory body, but along a different route than the one originally proposed by TransCanada, the company behind the pipeline. That means in order to construct the pipeline, TransCanada will potentially need to obtain approval from a handful of federal agencies — something that could set construction back months or, potentially, years.

Grassroots environmental, climate, and social justice groups have said that they plan to continue organizing landowner resistance to the project — but that resistance will now take place under an administration decidedly less friendly towards environmental activists than when the project was initially proposed.

Still, with the Trump administration leaving little hope for environmental and climate groups that once saw the federal government as a potential ally, Skaggs said she views protest as an important tool for activists, despite the increased threat of prosecution. Beyond Keystone, a slew of proposed or partially-completed fossil fuel projects — especially ones that run through native land, like the Bayou Bridge Pipeline in Louisiana, a new liquefied natural gas plant in Washington, or the opening of the Arctic National Wildlife Refuge to oil and gas in Alaska — are likely to draw serious opposition from environmental, climate, and indigenous groups, many of which will likely turn to protest and, potentially, civil disobedience in an attempt to delay or derail the projects completely.

“The elected branches of government are not responsive to the will of the people, by and large. They are responsive to the interests of powerful industry. And in that situation, I think that people believe that dissent is critical,” Skaggs said.